Corruption and ethics Queensland style

While the ICAC in NSW claims the scalp of a sitting Premier yesterday, concerns increase about the Queensland Government's planned changes to its corruption watchdog, as well as the conduct of its handpicked acting chair. Barrister Alex McKean comments.

DID DR KEN LEVY chuckle quietly to himself as he set in motion the processes to have Ros Bates referred to the Ethics Committee of Parliament? Did he grin or grimace as he signed off on the paperwork to have the troubled MP investigated.

The thought ‘there but for the grace of the Premier go I’ may have crossed his mind as his pen scratched the parchment, consigning Ms Bates to the tender mercies of the Queensland Parliament's Ethics Committee.

The bar is not set all that high in terms of expectations of the ethical conduct of MPs of the Deep North in this savage year of our Lord 2014. It takes an accumulation of allegations of naked corruption, in the style of the unlamented Scott Driscoll to prompt the government into action.

The matter then proceeds along the well-worn path from wholehearted support, via cautious defensiveness, to opprobrium, expulsion and desperate claims of ignorance by those who well knew not all of the apples in the barrow smelled so sweet.

The Ethics Committee’s report shows that within hours of the Premier achieving victory in March 2012, Ms Bates sent emails to five MPs who looked set to be given ministries in the government, and to Michael Caltabiano, then DG of the Transport Department.

Her son was subsequently employed.

Where Ms Bates came unstuck was when she read a letter from her son into the record in Parliament on 15 October 2013.

That letter contained the sentence:

'... at no stage did my mother employ me, nor did she ask anyone to give me a job.'

In light of the earlier emails, Dr Levy clearly took the view this may amount to a misleading of Parliament.

Ms Bates submitted in her defence that her emails had not contained any express request that anyone give her son a job.

The Ethics Committee however referred to authority to the effect that it is possible:

‘... that a factually correct statement could also be misleading… by, for example, the deliberate omission of relevant information.'

Reading that part of the Ethics Committee’s decision may give Dr Levy pause.

The Ethics Committee said that although there was no express request for employment, the emails were sent for the purpose of Ms Bates getting her son a job and that a reasonable person, hearing the statement in the House in October 2013, could have been misled in substance.

It was conceded there was an argument that Ms Bates should have known she may be misleading the House, in October 2013, where she was the author of the earlier emails and where those emails had to be provided to the CMC, in the intervening period, as part of the investigation into Ms Bates.

The Ethics Committee, however, was apparently swayed by Ms Bates’ submissions that she was focused on her son’s letter, his state of health and the intense media interest in the matter.

An astute observer might say that the intense media interest in the case and the fact Ms Bates knew there was a CMC investigation going on should have alerted her to give careful consideration to each line of the letter she subsequently read in the Parliament.

So, because Ms Bates did not intend to mislead anyone, she is cleared and need only deliver an apology to the House — again.

Perhaps the Attorney should introduce a three-strikes rule for recidivist Parliamentarians?

But Dr Levy need not even concern himself with the prospect of being exposed to the ineffectual ministrations of the Ethics Committee for his transgressions.

That Select Committee appears to have been concerned to both delay its investigations[1] into Dr Levy and to ensure there is the minimum possible level of transparency involved in its deliberations.

Now it appears that Dr Levy need not even worry about the Select Committee. The government has recently introduced a Bill that will not only bring the CMC finally to heel, it will also guarantee Dr Levy’s tenure until 29 October 2014.

It certainly seems that an injection of public confidence is required.

The actions of the Premier in dismissing the entire membership of the PCMC in an apparent effort to avoid further investigation of Dr Levy and the referral of that investigation to the Select Committee on Ethics, which has resisted all attempts to give even the appearance of transparency, have significantly eroded public confidence in the CMC.

Guaranteeing Dr Levy a job through legislation would achieve precisely the opposite of the professed policy objective, where his continued appointment constitutes a serious threat to public confidence in the CMC.

The provision of a legislative imprimatur guaranteeing his appointment, while Dr Levy remains under investigation by the Select Committee would be a serious blow to what confidence remains.

Dr Levy authored an article in the Courier Mail on 31 October 2013. The article supported the anti-association legislation introduced by the Government.

In it, Dr Levy said:

'... the Attorney-General and the Premier – with support of the Queensland Government – are taking the strong action that is required.'

This unprecedented move by a CMC head was at the very best naïve. The real source of Dr Levy’s problems lies, as so often in these cases, in the steps he subsequently took to obscure the input of highly-placed people in the government into that article.

On 1 November 2013, Dr Levy appeared before the PCMC.

The Opposition Leader, Ms Palaszczuk, asked Dr Levy if he had any discussions with "anyone from the government" before he submitted the article to the Courier Mail.

Dr Levy denied that suggestion several times.

On 2 November 2013, Dr Levy called the chair of the PCMC to correct the record, saying there had been one contact between Mr Lee Anderson and a junior person in the CMC media office. He also wrote a letter to the PCMC chair apologising and setting the record straight.

Critically, there was no disclosure of any other contact which may have been relevant to Dr Levy’s responses in the exchange, either in the telephone conversation or letter to the chair of the PCMC.

On 13 November 2013, Dr Levy again appeared before the PCMC.

On that occasion, Dr Levy said, when the error was first brought to his attention, he still did not recall the contact with Mr Anderson. He then added that once he recalled the approach to the CMC media people, he felt guilty and "highly embarrassed" about it and thought about clearing out his drawers and leaving.[2]

Dr Levy said:

"'If one asks ‘Did the Premier or anybody from his office ask me to write an article?’ The answer is, no."[3]

Dr Levy similarly denied that anybody else had made any contribution to the article, tried to tell him what to write, or to influence him in any way to write the article.[4] He said the telephone call to ask Mr Anderson about Mr Houghton was the only other contact he had with Mr Anderson and for only that purpose.[5]

Already Dr Levy was in trouble. His revelation about the phone call to Anderson to ask about Houghton was a contact not referred to in his letter.

Dr Levy’s difficulties were compounded when Lee Anderson fronted the PCMC on 18 November 2013.

Anderson gave evidence which directly contradicted that of Levy in a number of important points, including:

the number of times there was contact between them prior to the publication of Dr. Levy’s opinion piece;

whether Anderson suggested that Houghton should conduct the interview with Dr. Levy;

Anderson making initial contact with Houghton to discuss the proposed interview; and

Anderson seeking to provide input into what the article would and would not discuss.

Most significantly, Anderson told the PCMC he had a face-to-face meeting where the article was discussed, just a few days before it was published. The meeting took place on the 15th floor of the Executive Building, where the Premier’s office is located.

On 21 November 2013, the Premier sacked the membership of the PCMC.

This was an unprecedented move. The sacking meant the PCMC was unable to further investigate manifest inconsistencies between the evidence of Dr Levy and Mr Anderson to Dr Levy.

The inquiry into Dr Levy’s evidence to the PCMC was removed from the reconstituted PCMC and taken over by the Select Committee on Ethics on the same day.

For a period of time in February 2014, the website for the Select Committee on Ethics (‘the Select Committee’) initially informed the public that public hearings would be held in the week beginning 20 January 2014, if required.

On 17 March 2014, the chair of the Select Committee wrote a letter saying it had sought additional information from relevant persons and had determined it would not be seeking submissions from interested members of the public, because:

'...it is considered unlikely that persons with no direct involvement in the matter would be in a position to add value to the Committee’s deliberations.'

At the time of writing this submission, the Select Committee has not released any further information. It certainly has not cleared Dr Levy and has taken an approach entirely lacking in transparency.

It is impossible to reconcile the versions of Dr Levy and Mr Anderson about the number and nature of discussions between the two men. If Mr Anderson’s testimony is accurate, then Dr. Levy has misled the PCMC on a variety of issues on two separate occasions.

These are issues that were the subject of sustained questioning by the PCMC and Dr Levy has provided answers to questions before the PCMC directly contradicting the evidence of Mr Anderson.

Even more disturbing, there appears to have been a tendency on behalf of Dr Levy to ‘drip-feed’ information to the PCMC about his contacts with government figures prior to the publication of the article. It is trite to say that the situation of giving evidence before the PCMC is one in which the utmost candour and frankness is required of someone in Dr Levy’s position.

It is inconceivable that Dr Levy cannot have known he was speaking to someone from the Government when he was having discussions with Mr Anderson. The same can be said of any contacts he had with people from Department of Justice and the Attorney-General, a department of which he was the director-general for a period of several years.

So, would Dr Levy be able to avail himself of the ‘Ros Bates defence’ if he were ever subject to a transparent investigation. It is difficult to see how he could.

Firstly, the events which Dr Levy appears not to have had in his consciousness occurred only a few days before the exchange with the Opposition Leader. It can be said with some confidence that Dr Levy would need to be capable of recalling such significant events occurring so recently in order to fulfil the requirements of his role.

Secondly, Dr Levy possesses significantly higher qualifications than those of the redoubtable Ms Bates. In his role as acting chair of the CMC, he certainly should have an acute awareness of the issues surrounding the possibility of misleading a Parliamentary Committee.

While these questions remain unanswered about the conduct of Dr Levy and there is no transparent process in place where the inconsistencies and apparent withholding of information can be properly investigated, there can be little public confidence in a CMC of which Dr Levy is Acting Chair.

[1] The matter of Dr Levy was referred to the Select Committee on 21 November 2013. More than 4 months later no report has been forthcoming. The Select Committee, unlike other Committees, has only one inquiry ongoing at this time.

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